Staying Focused in Ambiguous Times 

For Carmel Schacar and I. Glenn Cohen of Harvard Law School, writing in Health Affairs, “uncertainty” was 2017’s word of the year for health law and bioethics.¹ In many ways, that capsule summary suits a description of healthcare in general and anesthesia in particular during the past 12 months as the frenetic pace of change continued unabated and a new Administration sought to leave its mark.

Repeated attempts by a Republican Congress to dismantle the Affordable Care Act (ACA) consumed a good part of the year; the new Administration began loosening some regulatory requirements forged by the previous Administration, such as mandatory participation in some bundled payment programs; the Department of Health and Human Services lost a Secretary; the Centers for Medicare and Medicaid Services reduced anesthesia payments for several services for 2018, including screening colonoscopies; many anesthesia practices began the complex, at times confusing, transition to a value-based system through the Quality Payment Program; and pain specialists saw themselves become a focus of intensified federal agency probes into opioid-related fraud, waste and abuse.

As this issue of Communiqué is about to be published, the House and Senate passed and President Trump signed the Tax Cuts and Jobs Act of 2017. The bill’s healthcare provisions present yet more uncertainty as the legislation seeks to eliminate the individual mandate and reduce the federal support for Medicaid that were cornerstones of the ACA.

The current climate of lingering uncertainty makes it even more important for anesthesia practices to do everything that they can do to stay focused, strong and compliant with the law. It is our hope that the articles in this issue of Communiqué will support your efforts in this regard as you enter the new year.

In our lead article, Jody Locke, ABC vice president of anesthesia and pain practice management services, extols the importance of accurate, timely and relevant data in keeping your practice on track.

Quality is key, along with “a commitment to use the data for decision making,” he writes. “Data for data’s sake has little to no value. . . Ideally, data management should always be a proactive process, focused on trends and exceptions to those trends.”

Also in this issue:

• In their first article for Communiqué, Frank Carsonie, JD, and Nathan Sargent, JD, of Benesch, Friedlander, Coplan & Aronoff LLP reveal, through a hypothetical example, why hospitals and hospital-based physician groups, anesthesia groups included, must carefully consider the unique facts and circumstances of each contractual arrangement into which they enter. They highlight the importance of transparency, clear documentation of a rationale, a conflict of interest policy and procedure, an objective board or governing body, and an external legal and compliance analysis as protective measures.
• Frequent contributor Will Latham, MBA, of Latham Consulting Group, Inc., returns with solid guidance on dealing with a group member’s disruptive behavior. Rather than let one bad actor’s unprofessionalism plague the group, tarnish its reputation and jeopardize its hospital relationships, develop a system, grounded in a Code of Conduct, which delivers a swift solution, Mr. Latham urges. A Code of Conduct immediately changes the situation from one of “your opinion versus my opinion” to “here is what you are doing compared to what the group has agreed to.” Problem (more quickly and dispassionately) solved.
• Kathryn Hickner, Esq., of Ulmer & Berne LLP returns with an in-depth look at business associate agreements (BAAs). They’re easy to overlook, but as the holder of the protected health information (PHI), your group must take the lead in making sure appropriate BAAs are in place, or it can cost you. This past April, the Center for Children’s Digestive Health paid Health and Human Services $31,000 to settle potential violations of the Health Insurance Portability and Accountability Act (HIPAA) following initiation of an investigation of a business associate. The Center began disclosing PHI to a record storage vendor, FileFax, Inc., in 2003, but neither party could produce a signed BAA prior to October 12, 2015.
• Finally, Mark F. Weiss, JD, of The Mark F. Weiss Law Firm offers several examples of compliance errors made by others and how you can use these unfortunate mistakes to guide and inform your own learning and reduce your risk. Like Mr. Carsonie and Mr. Sargent, Mr. Weiss recommends performing a compliance assessment of any proposed dealings with those who refer to you, or to whom you refer. He also encourages performing a simulated government investigation of your current arrangements to identify problem areas before they hurt you.

We look forward to seeing many of you at the American Society of Anesthesiologists PRACTICE MANAGEMENT™ 2018 in New Orleans, January 26-28, and extend warmest wishes for a happy, healthy and productive new year.

With best wishes,

Tony Mira
President and CEO

1 Schacar, C. and Cohen, I.G. 2017’s Word of the Year in Health Law and Bioethics. Uncertainty. Health Affairs Blog, December 8, 2017. https://www.healthaffairs.org/do/10.1377/hblog20171206.694358/full/